Federal Register I Vol. 59, No. 239 I Wednesday December 14, 1994 I Rules and Regulations 64339

Intergovernmental relations, Nitrogen

-Dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds. Note: Incorporation

by reference of the State Implementation

Plan for the State of California was

approved by the Director of the Federal

Register on July 1, 1982.

Dated: November 28, 1994.

John Wise,

Acting Regional Administrator

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority- 42 U.S.C. 7401-7671q.

Subpart F-California

2. Section 52.220 is amended by

adding paragraphs (c) (186)(i)(D)(2) and

(194)(i)(A)(2),to read as follows:

§ 52.220 Identification of plan.

(c)

(186) (i)

(D)

(2)-Rule 103, adopted on June 4, 1991.

(194)

(i)

(A)

(2) Rule 59, adopted on September 15,

1992.

[FR Dot. 94-30742 Filed 12-13-94; 8:45 amj

BILLING CODE 6560-60-P

40 CFR Parts 123, 124, 131,142, 144,

145, 233, and 501

(FRL-6119-e]

RIN 2020-AA20

Indian Tribes; Eligibility for Program

Authorization

AGENCY, Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY* This action amends

regulations addressing the role of Indian

tribes so as to make it easier for tribes

to obtain EPA approval to assume the

role Congress envisioned for them under

certain environmental statutes. Three

EPA regulatory statutes address the

tribal role specifically by authorizing

EPA to treat tribes in a manner similar

to that in which it treats states: The

Clean Water Act (CWA), the Safe

Drinking Water Act (SDWA), and the

Clean Air Act (CAA). All three statutes

specify that, in order to receive such

treatment, a tribe must be federally

recognized and possess a governing

body carrying out substantial duties and

powers. In addition, each requires that

a tribe possess civil regulatory

jurisdiction to carry out the functions it

seeks to exercise. Finally, all three

require that a tribe be reasonably

expected to be capable of carrying out

those functions.

The Agency initially chose to

implement provisions of the Clean

Water and Safe Drinking Water Acts

regarding Indian tribes by establishing a

formal prequalification process under

which tribes can seek eligibility under

these statutes. This prequalification

process has in the past been referred to

as approval for "treatment as a state"

("TAS"). Tribes that obtain such

approval then become eligible to apply

for certain grants and program approvals

available to states.

The Agency's "TAS" prequalification

process has proven to be burdensome,

time-consuming and offensive to tribes.

Accordingly EPA has adopted a new

,policy to improve and simplify the

process and this regulation implements

the new policy. To the extent possible,

the Agency plans to use the same

process in future regulations regarding

determinations of tribal eligibility.

As of the effective date of this

regulation, it is the intent of EPA to

follow the new process in making

determinations on tribal eligibility for

program authorization. With respect to

pending "TAS" applications for

program authorization, the Agency will

utilize the information contained in

such applications to determine tribes'

eligibility and tribes will be requested to

supplement such applications only to

the extent necessary to determine

program eligibility

EFFECTIVE DATE: December 14, 1994.

FOR FURTHER INFORMATION CONTACT: C.

Marshall Cain, Office of Federal

Activities (2251), Environmental

Protection Agency, 401 M Street SW.,

Washington, DC 20460, (202) 260-8792.

SUPPLEMENTARY INFORMATION:

Background

In order to simplify and streamline

the process of assessing tribal eligibility

for program authorization while still

ensuring full compliance with all

applicable statutes, on March 23, 1994,

EPA published in the Federal Register

(59 FR 13819) a notice of proposed

rulemaking to amend regulations

governing the process whereby Indian

tribes become eligible to assume a role

in implementing the environmental

statutes on tribal land comparable to the

role states play on state land.

EPA recognizes that tribes are

sovereign nations with a unique legal

status and a relationship to the federal

government that is significantly

different than that of states. EPA

believes that Congress did not intend to

alter this when it authorized treatment

of tribes "as States;" rather, the purpose

was to reflect an intent that, insofar as

possible, tribes should assume a role in

implementing the environmental

statutes on tribal land comparable to the

role states play on state land.

The proposals set forth in the

proposed rule involved the following: 1. Elimination of "TAS" review as a

separate step in the process. No statute

compels the use of a formal "TAS" or

other prequalification process separate

from approval of the underlying request

for program approval. The only

requirements imposed by statute are

that, to be eligible for program

authorization, a tribe must be federally

recognized, have a governing body

carrying out substantial duties and

powers, and have adequate jurisdiction

and capability to carry out the proposed

activities. Thus, EPA may authorize a

tribal program without formally

designating the tribe as "eligible for

TAS," so long as the Agency establishes

that the tribe meets the applicable

statutory requirements. In other words,

the Agency can ensure compliance with

statutory mandates without requiring

tribes to undergo a discrete, formal

process of seeking "TAS" approval. Accordingly, EPA is amending its

regulations to eliminate "TAS" review

as a separate step in the processing of

a tribal application for program

approval. Under the new, simplified

process, the Agency will ensure

compliance with statutory requirements

as an integral part of the process of

reviewing program approval

applications. To the extent that this rule

or preamble conflicts with the language

of previous rules and preambles, the

language herein shall be controlling.

2. Discontinuance of use of the term

"treatment as a state." To the extent

possible, the rule amends existing

regulations so as to discontinue use of

the term "treatment as a state"

however, since the phrase is included in

several statutes, its continued use may

sometimes be necessary. 3. Simplified determination as to

"recognition" and "government." A

tribe typically establishes recognition by

showing its inclusion on the list of

federally recognized Tribes published

by the Secretary of the Interior in the

Federal Register. A tribe establishes that

Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations 64339
64340 Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations

it meets the governmental duties and

powers requirement with a narrative

statement describing the form of the

tribal government and the types of

functions it performs, and identifying

the sources of the tribe's governmental

authority.

As a general rule, the "recognition

and "governmental" requirements are

essentially the same under the Clean

Water,,Safe Drinking Water and Clean

Air Acts. The new process will reflect

this by establishing identical

requirements for making this showing

under each statute. Moreover, the fact

that a tribe has met the recognition or

governmental functions requirement

under either of the Water Acts or the

Clean Air Act will establish that it meets

those requirements under both statutes.

To facilitate review of tribal

applications, EPA will request that

tribal applications inform EPA whether

a tribe has been approved for "TAS"

(under the old process) or deemed

eligible to receive authorization (under

the revised process) for any other

program.

A tribe that has not done so may

establish that it has been federally

recognized by simply stating in its

program authorization application that

it appears on the list of federally

recognized tribes that the Secretary of

the Interior publishes periodically in the

Federal Register. If the tribe notifies

EPA that it has been recognized but

does not appear on this list because the

list has not been updated, EPA will seek

to verify the fact of recognition with the

Department of the Interior.

A tribe that has not yet made its

initial "governmental" showing can do

so by certifying that it has a government

carrying out substantial functions. A

tribe will be able to make the required

certification if it is currently performing

governmental functions to promote the

public health, safety, and welfare of its

population. Examples of such functions

include, but are not limited to, levying

taxes, acquiring land by exercise of the

power of eminent domain, and

exercising police power. Such examples

should be included m a narrative

statement supporting the certification,

(1) describing the form of tribal

government and the types of essential

governmental functions currently

performed, and (2) identifying the legal

authorities for performing those

functions (e.g., tribal constitutions or

codes). It should be relatively easy for

tribes to meet this requirement without

submitting copies of specific documents

unless requested to do so by the Agency. 4. Simplified jurisdictional analysis.

A tribe may have jurisdiction over, and

capability to carry out, certain activities

(e.g., protection of the quality of a

particular lake for the Clean Lakes

program under the Clean Water Act),

but not others (e.g., waste management

on a portion of the reservation far

removed from any lakes). For this

reason, EPA believes that the Agency

must make a specific determination that

a tribe has adequate jurisdictional

authority and administrative and

programmatic capability before it

approves each tribal program. This will

ensure that tribes meet the statutory

requirements Congress has established

as prerequisites to tibal eligibility for

each particular program.

The portion of the jurisdictional

determination under which

governments comment on tribal

jurisdiction will be substantially altered

under this Rule. These changes are

outlined below.

For approvals of all Drinking Water

regulatory programs and most Clean

Water programs under existing

regulations, EPA will not authorize a

state to operate a program without

determining that the state has adequate

authority to carry out those actions

required to run the program. See e.g. 40

CFR 142.10 (PWS), 145.24 (UIC). This

applies also to a tribe seeking program

approval, and ensures that a close

analysis of the legal basis of a tribe's

jurisdiction will occur before program

authorization.

Accordingly a separate "TAS"

jurisdictional review is not needed to

verify that a tribe meets the statutory

jurisdictional requirement and,

therefore, will be eliminated for all

programs under the Safe Drinking Water

Act, and for the Clean Water Act's 404

and NPDES programs. This change will

have the effect only of eliminating

duplicative requirements. In no case can

a tribe receive program approval until

the Agency has received full and

adequate input concerning the scope

and extent of the tribe's jurisdiction.

Moreover, EPA will expect each tribe

seeking program approval to provide a

precise description of the physical

extent and boundaries of the area for

which it seeks regulatory authority. Tius

description should ordinarily include a

rfap and should identify the sources or

systems to be regulated by the tribe.

However, for the Water Quality

Standards program, there is no review of

tribal civil regulatory authority as part

of-the standards approval process under

section 303(c) of the Clean Water Act.,

Accordingly, for that program, a

comment process will be retained.

However, the Agency wishes to clarify

the operation of that process by

reiterating that comments must be

offered in a timely manner, and, further,

by specifying that where no timely

comments are offered, the Agency will

conclude that there is no objection to

the tribal applicant's jurisdictional

assertion. Moreover, to raise a

competing or conflicting claim a

comment must clearly explain the

substance, basis, and extent of its

objections. Finally when questions are

raised concerning a tribe's jurisdiction,

EPA may in its discretion, seek

additional information from the tribe or

the commenting party and may consult

as it sees fit with other federal agencies

prior to making a determination as to

tribal jurisdictional authority but is not

required to do so. Henceforth, EPA will

no longer be required, by regulation, to

consult with the Department of the

Interior.

Finally the Agency notes that certain

disputes concerning tribal jurisdiction

may be relevant to a tribe's authority to

conduct activities and obtain program

approval under several environmental

statutes. For.example, if a tribe and a

state or another tribe disagree as to the

boundary of a particular tribe s

reservation, each time the tribe seeks to

assert authority over the disputed area,

the dispute will recur. The Agency

recognizes that its determinations

regarding tribal jurisdiction apply only

to activities within the scope of EPA

programs. However, it also believes that,

once it makes a jurisdictional

determination in response to a tribal

application regarding any EPA program.

it will ordinarily make the same

determination for other programs unless

a subsequent application raises different

legal issues. Thus, for example, once the

Agency has arrived at a position

concerning a boundary dispute, it will

not alter that position in the absence of

significant new factual or legal

information. By contrast, however, a

determination that a tribe has inherent

jurisdiction to regulate activities in one

medium might not conclusively

establish its jurisdiction over activities

in another medium. See generally

Discussion of inherent tribal authority

in Water Quality Standards Regulation,

56 FR 64877-64879.

Under the new approval process, as

under the old, the Agency will continue

to retain authority to limit its approval

of a tribal application to those land

areas where the tribe has demonstrated

jurisdiction. This would allow EPA to

approve the pori9n.of a, tribal

application covering certain areas, while

withholding approval of the portion of

an application addressing those land

areas where tribal'atihority has not.

been satisfactorily established. See, e.g.

53 FR 37395, 37402 (September 26,

1988) (SDWA); 54 FR 14353, 14355
Federal Register / Vol. 59, No. 239 /Wednesday December 14, 1994 / Rules and Regulations 64341

(April 11, 1989) (Clean Water Act

Grants); 54 FR 39097 39102 (September

12, 1989) (Clean Water Act Water

Quality Standards); 58 FR 8171,8176

(February 11, 1993) (Clean Water Act

section 404); 58 FR 67966, 67972 (Clean

Water Act NPDES) (December 22, 1993).

5. More flexible requirements to

establish capability. EPA must continue

to make a separate determination of

tribal capability for each program for

which it approves a tribe. However, the

Safe Drinking Water Act, Water Quality

Standards, Section 404, and NPDES

regulations will be amended to conform

to the CWA grant regulations, which do

not specifically prescribe the material a

tribe must submit to establish

capability. Ordinarily, the inquiry EPA

will make into the capability of any

applicant, tribal or state, for a grant or

program approval will be sufficient to

enable the Agency to determine whether

a tribe meets the statutory capability

requirement. See, e.g., 40 CFR part 31

(grant regulations applicable to states

and tribes); 40 CFR 142.3 (Public Water

System primary enforcement

responsibility requirements at parts 141,

142 apply to tribes); § 145.1(h)

(Underground Injection Control

requirements of parts 124, 144, 145, and

146 that apply to states generally apply

to tribes).

Nevertheless, EPA may request that

the tribe provide a narrative statement

or other documents showing that the

tribe is capable of administering the

program for which it is seeking

approval. In evaluating tribal capability

EPA will consider:

(1) The tribe's previous management

experience;

(2) Existing environmental or public

health, programs administered by the

tribe;

(3) The mechanisms in place for

carrying out the executive, legislative

and judicial functions of the tribal

government;

(4) The relationship between

regulated entities and the administrative

agency of the tribal government which

will be the regulator; and

(5) The technical and administrative

capabilities of the staff to administer

and manage the program.

EPA recognizes that certain tribes may

not have substantial experience

administering environmental programs;

a lack of such experience will not

preclude a tribe from demonstrating

capability so long as it shows that it has

the necessary management and

technical and related skills or submits a

plan describing how it will acquire

those skills.

The notice of proposed rulemaking

invited public comments on the

proposed amendments, which would be

considered before adoption of a final

rule. The public comment period closed

on May 23; 1994.

Analysis of Comments

A total of seven commenters

responded to the solicitation of

comments during the public comment

period. Of these, four expressed support

for the proposed changes in varying

degrees, one of whom expressed strong

support and others supported the

changes generally but disagreed with

certain aspects or had specific

recommendations for other changes.

One commenter did not express support

or opposition but urged EPA to continue

to stress that tribes should enact water

quality programs similar to current state

water quality programs. Another

commenter, while not explicitly

supporting the proposed amendments,

urged that they be extended to include

two other programs under the Safe

Drinking Water Act. A final commenter

opposed one aspect of the simplification

process as it related to state review of

tribal applications. These comments,

suggested changes, and the EPA

responses thereto, are set forth below.

Comment: Consistent with the EPA

Indian Policy and sound administrative

practice, EPA should recognize tribal

authority over all environmental matters

within reservation boundaries, without

requiring tribes to demonstrate their

inherent authority.

Response: EPA recognizes the

importance of comprehensive

management of reservation

environments. However, EPA does not

have the legal authority to expand the

scope of tribal jurisdiction.

Consequently EPA must continue to

analyze each tribal claim of jurisdiction

in light of appropriate statutory and

common law principles to ensure that

the tribe in fact has adequate authority

to carry out the functions it proposes to

undertake.

Comment: EPA is-to be commended

for eliminating the state opportunity to

comment on tribal jurisdictional

assertions for all SDWA programs and

for the Clean Water Act Section 404 and

NPDES programs. However, since tribes

cannot comment on state jurisdictional

assertions in any programs; in fairness

EPA should also eliminate state

opportunity to comment on tribal

jurisdictional assertions regarding Water

Quality Standards.

Response: EPA continues to believe

that it has the legal authority to approve

a tribal Water Quality Standards

program only upon a determination that

the tribe has adequate authority to

operate that program, and that state

comments may be useful to the Agency

in making that determination.

Comment: EPA could further simplify

the TAS process by providing that,

when EPA reviews a new TAS

application for a tribe that has already

obtained TAS approval for one program,

EPA will rely on the jurisdictional

assertions in the prior approval to

establish jurisdiction for a subsequent

program. Where the earlier

jurisdictional assertions do not establish

jurisdiction adequately for the

subsequent application, EPA would

notify the tribe of any deficiencies and

the tribe could then supplement or

amend the original jurisdictional

statement.

Response: EPA agrees with the

commenter that this would simplify the

process. However, EPA believes that it

should look in the first instance to each

tribal applicant's views as to its own

jurisdiction. Thus a tribe that believes it

is appropriate to provide more

information regarding jurisdiction on a

subsequent application than it provided'

on a previous one should be able to do

so directly, without waiting for EPA to

determine, after it begins processing an

application, that more inform2tion is

needed. EPA believes that under the

current proposal, a tribe that wishes to

use the process described by the

commenter could do so by expressly

incorporating the earlier jurisdictional

assertion into a subsequent application.

In addition, the jurisdictional

approach the Agency has determined

the Clean Air Act allows it to follow

differs substantially from the approach

it follows under the Water Acts. For this

reason, EPA does not believe it would

be appropriate to establish a process

under which a tribe would assume that,

unless advised to the contrary, a

jurisdictional assertion that was

adequate under the Clean Air Act would

also be adequate under one of the Water

Acts.

Comment: States should be able to

comment on the jurisdictional

assertions contained in tribal gralt

applications. Also, states should not be

totally bypassed- in decisions to approve

tribal regulatory programs.

Response: As stated in. the. Federal

Register notice amending the EPA

financial assistance regulations for

tribes, EPA has extensive experience

awarding grants to tribes, and has

concluded that it is fully capable of

evaluating grant applications to ensure

adequate tribal jurisdiction without

seeking comments from states. EPA

agrees that it should obtain information

from states concerning tribal

applications for program approval, and
64342 Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations

the proposed regulatory changes would

ensure that this occurs.

Comment: One commenter, while

supporting the intent of the proposed

revisions, urged that (1) EPA regulations

relating to Section 401 Certification (40

CFR part T21) be amended to expressly

include Indian tribes so as to facilitate

tribal involvement m the section 401

process, to resolve disagreements

between tribes and states and to resolve

disputes between tribes as well; (2) an

apparent inconsistency in the definition

of "State" in § 122.2 (which references

Indian tribes that have obtained

approval of their NPDES program but

not their WQS program) be changed so

that water quality standards set by

approved tribes will be protected in

NPDES permits under §§ 122.44, 124.53

and similar provisions; and (3) the

regulations for the dispute resolution

mechanism, 40 CFR 131.7 be revised to

expressly authorize the use of this

process for resolving disputes between

two or more tribes that have differing

standards for common bodies of water.

Response: (1) EPA believes it is

unnecessary to amend the 401

regulations in Part 121 through the

present TAS revisions rule in order to

clarify that tribes have the authority to

provide 401 certifications once they

have approved water quality standards

(WQS). It is EPA's position that tribes

clearly have 401 authority once they

receive approval of their WQS as

specified in 40 CFR 131.4(c).

(2) EPA also does not believe that

changes are necessary to the definition

of "State" in § 122.2. The intent of

EPA's regulations was to require the

permitting authority (whether EPA or an

authorized NPDES State) to issue

permits which comply with all

applicable water quality standards

(including WQS approved by EPA for an

Indian tribe). EPA interprets its

regulations to require that all NPDES

permits comply with applicable and

EPA approved tribal WQS regardless of

whether the tribe has been authorized as

a permitting authority for the NPDES

program. EPA's new regulatory

provision in 40 CFR 124.51(c) supports

the tribes' 401 certification authority

and reads as follows: "As stated in 40

CFR 131.4, an Indian Tribe that is

qualified for Treatment as a State for

purposes of the WQS program is

likewise qualified for treatment as a.

State for purposes of State certification

of WQS pursuant to section 401(a)(1) of

tle Act [Clean Water Act] and Subpart

D of this part. The preamble of the

final NPDES rule at 58 FR 67967

(December 10, 1993) discusses this new

provision in more depth.

In addition, the recent EPA guidance

concerning EPA's implementation of the

NPDES and sludge management

programs with respect to Federal Indian

Reservations (FIRs) specifies that "In

situations where a State is the upstream

NPDES permitting authority and

downstream FIR Tribal WQS have been

approved by EPA, the State will provide

notice of the pr9paration of a draft

permit to the affected Tribe pursuant to

CWA sections 401 and 402. Under CWA

sections 402(b)(3) and 40 CFR 124.12(a),

the upstream NPDES state must provide

an opportunity for public hearing on the

issuance of the draft permit where there

is significant public interest in so doing.

Under CWA section 402(b)(5), the

affected Tribe may submit written

recommendations to the permitting

State and EPA, and the failure to accept

the recommendations and the reasons

for doing so. EPA can object to the

upstream State permit where EPA

believes that the reasons for rejecting

the recommendations are inadequate."

Therefore, this guidance reflects EPA s

general view that applicable tribal WQS

are.to be reflected in all water qualitybased NPDES permit limits. When the

Part 122-124 regulations refer to WQS

of a "State, this also refers to Indian

tribes with EPA approved WQS.

(3) EPA previously responded to

comments regarding the scope of the

dispute resolution mechanism on the

rule allowing tribes to establish WQS

(56 FR 64876, December 12, 1991). At

that time, OW commented that the rule

was written in this manner because

Section 518 of the Clean Water Act

specified that a dispute resolution

mechanism be developed to resolve

disputes arising between a tribe and a

state. OW further commented that EPA

believes the requirements that the State

standards provide for protection of

downstream standards in § 131.10(b) of

the WQS Regulation, supported by a 25

year history of informal negotiation of

issues between states, provides

sufficient basis for resolving disputes

between two states or two tribes. 56 FR

64888-64889. Further comments on this

issue are beyond the scope of this rule

and, therefore, EPA declines to revisit it

at this time.

Comment: Although the proposed

regulation would simplify the TAS

process for a number of programs, it

would not apply expressly to wellhead

protection programs or sole source

aquifer demonstration programs under

the Safe Drinking Water Act. The

Agency should consider seriously the

inclusion of these important programs

under the new regulation as well.

Response: EPA does not believe that

it would be appropriate to expand the

scope of the regulation at this stage of

its development. However, as pointed

out previously in the Summary of this

regulation, to the extent possible, the

Agency plans to use the new process in

future regulations regarding

determinations of tribal eligibility.

Conclusion

Accordingly based on the comments

received and the analysis of those

comments as set forth above, EPA

believes that the proposed regulatory

amendments as published in the

Federal Register on March 23, 1994 (59

FR 13819) should be adopted as a final

rule as discussed above and set forth

below.

Executive Order 12866

Under Executive Order 12866- [58 FR

51735 (October 4, 1993)] the Agency

must determine whether the regulatory

action is "significant" and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines " significant

regulatory action" as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy a sector of the economy

productivity, competition, jobs, the

environment, public health or safety or

State, local or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency-

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President's priorities, or the principles

set forth in the Executive Order.

It has been determined that this rule

is not a "significant regulatory action

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

Regulatory Flexibility Act

Pursuant to section 605(b) of the RFA,

5 U.S.C. 605(b), EPA certifies that this

rule will not have a significant

economic impact on a substantial

number of small entities because it

merely revises existing procedural

requirements for Indian tribes by

making them simpler and less

burdensome; Indian tribes-are not

considered small entities under this

rulemaking for RFA purposes.
Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations 64343

Paperwork Reduction Act

The proposed regulations contain no

new or additional information

collection activities and, therefore, no

information collection request will be

submitted to the Office of Management

and Budget for review in compliance

with the Paperwork Reduction Act, 44

U.S.C. 3501 et seq.

List of Subjects

40 CFR Part 123

Administrative practice and

procedure, Confidential business

information, Environmental protection,

Hazardous substances, Indian lands,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Waste treatment and

disposal, Water pollution control, Water

supply.

40 CFR Part 124

Administrative practice and

procedure, Air pollution control,

Environmental protection, Hazardous

substances, Indian lands, Reporting and

recordkeeping requirements, Sewage

disposal, Waste treatment and disposal,

Water pollution control, Water supply

40 CFR Part 131

Environmental protection, Reporting

and recordkeeping requirements, Water

pollution control.

40 CFR Part 142.

Environmental protection,

Administrative practice and procedure,

Chemicals, Indians-lands, Radiation

protection, Reporting and recordkeeping

requirements, Water supply

40 CFR Part 144

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous waste, Indians-lands,

Reporting and recordkeeping

requirements, Surety bonds, Water

supply.

40 CFR Part 145

Environmental protection, Indianslands, Intergovernmental relations,

Penalties, Reporting and recordkeeping

requirements, Water supply

40 CFR Part 233

Environmental protection,

Administrative practice and procedure,

Intergovernmental relations,Penalties,

Reporting and recordkeeping

requirements, Water pollution control.

40 CFR Part 501

Administrative practice and

procedure, Intergovernmental relations,

Penalties, Reporting and recordkeepmg

requiremnents, Sewage disposal.

Dated: November 18, 1994.

Fred Hansen,

Acting Admmnistrator

For the reasons set forth in the

preamble, 40 CFR parts 123, 124, 131,

142, 144, 145, 233, and 501 are

amended as follows:

PART 123-STATE PROGRAM

REQUIREMENTS

1. The authority citation for part 123

continues to read as follows:

Authority: Clean Water Act, 33 U.S.C. 1251

et seq.

§ 123.1 [Amended]

2. Section 123.1(h) is amended by

removing the phrase "treated as a

State.

§ 123.21 (Amended]

3. In § 123.21 paragraph (a)(1) is

amended by revising the phrase "eligible for treatment as a state in

accordance with § 123.33(e)" to read "in

accordance with § 123.33[b)"

4. In § 123.21 paragraph (b)(2) is

amended by removing the phrase "for

treatment as a State" both times they

appear and by revising the text

"§ 123.33(e)" to read "§ 123.33(b)"

§ 123.22 [Amended]

5. In § 123.22 paragraph (g) is

amended by removing the phrase "for

treatment as a State" and by revising the

text "§ 123.33(e)" to read "§ 123.33(b)"

§ 123.31 [Amended]

6. The heading of § 123.31 is amended

by revising the phrase "for treatment of

Indian Tribes as States" to read "for

eligibility of Indian Tribes."

7 In § 123.31 paragraph (a) is

amended by removing the phrase "a

State. for purposes of making the Tribe.

8. In § 123.31 paragraph (a)(4) is

amended by removing all language

following "in a manner consistent with

the terms and purposes of the Act and

applicable regulations, of an effective

NPDES permit program.

§ 123.32 [Amended]

9. The heading of § 123.32 is amended

by removing "for treatment as a State."

10. In § 123.32 the introductory text is

amended by removing the phrase "for

treatment as a State.

11. In § 123.32 paragraph (b)

introductory text is'amended by revising

the words "This statement shall" to read

"This statement should."

12. In § 123.32 paragraph (c) is

amended by revising the phrase "a copy

of all documents" to read "copies of

those documents" and by revising the

phrase "support the Tribe's assertion"

'tO read "the Tribe believes are relevant

to its assertion."

13. In § 123.32 paragraph (d)

introductory text is amended by revising

the phrase "The statement shall

include" to read "The statement should

include."

14. In § 123.32 paragraph (d)(1) is

amended by revising the words

"including, but not limited to," to read "which may include."

15. In § 123.32 paragraph (e) is

amended by revising the phrase "a

Tribal request for treatment as a State"

to read "a Tribe's eligibility

16. In § 123.32 paragraph (f) is revised

to read as follows:

§-123.32 Request by an Indian Tribe for a

determination of eligibility.

(f) If the Admimstratoror his or her

delegatee has previously determined

that a Tribe has met the prerequisites

that make it eligible to assume a role

similar to that of a state as provided by

statute under the Safe Drinking Water

Act, the Clean Water Act, or the Clean

Air Act, then that Tribe need provide

only that information unique to the

NPDES program which is requested by

the Regional Administrator.

§ 123.33 [Amended]

17 The heading of § 123.33 is

amended by removing the phrase "for

treatment as a State."

18. In § 123.33 paragraph (a) is

amended by removing the phrase "for

treatment as a State.

19. In § 123.33 paragraphs (b),(c), (d),

and (e) are removed and paragraph (f) is

redesignated as paragraph (b).

PART 124-PROCEDURES FOR

DECISIONMAKING

1. The authority citation for part 124

continues to read as follows:

Authority: Resource Conservation and

Recovery Act, 42 U.S.C. 6901 et seq., Safe

Drinking Water Act, 42 U.S.C. 300(0 et seq.,

Clean Water Act, 33 U.S.C. 1251 et seq.,

Clean Air Act, 42 U.S.C. 7401 et seq.

§ 124.2 (Amended]

2. In § 124.2 the definition of "State"

is amended by revising the phrase "an

Indian'Tribe treated as a State" to read "an Indian Tribe that meets the

statutory criteria which authorize EPA

to treat the Tribe in a manner similar to

that in which it treats a State"

§ 124.51 [Amended]

3. In § 124.51 paragraph (c) is

amended by revising the phrase "is

qualified for treatment as a State" to
64344 Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994-/ Rules and Regulations

read "meets the statutory criteria which

authorize EPA to treat the Tribe in a

manner similar to that in which it treats

a State" and by revising the phrase

"likewise qualified for treatment as a

State" to read "likewise qualified for

such treatment."

PART 131-WATER QUALITY

STANDARDS

1. The authority citation for part 131

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

§ 131.3 [Amended]

2. In § 131.3 paragraph (j) is amended

by revising the phrase "qualify for

treatment as States for purposes of water

quality standards" to read "to be eligible

for purposes of a water quality

standards program"

§ 131.4 [Amended]

3. In § 131.4 paragraph (c) is amended

by revising the phrase "qualifies for

treatment as a State" in both places that

it appears to read "is eligible to the

same extent as a State"

§ 131.7 [Amended]

4. In § 131.7 paragraph (b)(2) is

amended by revising the phrase "qualifies to be treated as a State" to

read "is eligible to the same extent as a

State"

§ 131.8 [Amended]

5. The heading of § 131.8 is amended

by revising the phrase "to be treated as

States for purposes of water quality

standards" to read "to administer a

water quality standards program"

6. In § 131.8 paragraph (a)

introductory text is amended by revising

the phrase "treat an Indian Tribe as a

State for purposes of the water quality

standards program" to read "accept and

approve a tribal application for

purposes of administering a water

quality standards program" 7 In § 131.8 paragraph Nb)

introductory text is amended by revising

the phrase "for treatment as states for

purposes of water quality standards" to

read "for admimstration of a water

quality standards program"

8. In § 131.8 paragraph (b)(2)

introductory text is amended by revising

the word "shall" to read "should"

9. In § 131.8 paragraph (b)(3)

introductory text is amended by revising

the word "shall" to read "should"

10. In § 131.8 paragraph (b)(3)(ii) is

amended by removing the semi-colon

and adding to the end of the paragraph

the phrase "and which may include a

copy of documents such as Tribal

constitutions, by-laws, charters,

executive orders, codes, ordinances,.

and/or resolutions which support the

Tribe s assertion of authority' and"

11. Section 131.8(b)(3)(iii) is removed.

12. In § 131.8 paragraph (b)(3}{iv) is

redesignated as (b)(3)(iii).

13. In § 131.8 paragraph (b)(4)

introductory text is amended by revising

the word "shall" to read "should"

14. In § 131.8 paragraph (b)(4}(i) is

amended by revising the phrase

"including, but not limited to to read "which may include"

15. In § 131.8 paragraph (b)(5) is

amended by revising the phrase "request for treatment as a State, to

read "application"

16. In § 131.8 paragraph (b)(6) is

amended by revising the phrase "qualified for treatment as a State" to

read qualified for eligibility or

'treatment as a state' and by removing

the second occurrence of the phrase

"treatment.as a State"

17 In § 131.8 paragraphs (c)

introductory text, (c)(1) and (c)(2)

introductory text are amended by

removing the words "for treatment as a

State"

18. In §131.8 paragraph (c)(4) is

amended by revising the phrase "after

consultation with the Secretary of the

Interior, or his designee" to read "after

due consideration"

19. In § 131.8 paragraph (c)(5) is

amended by revising the words "has

qualified to be treated as a State for

purposes of water quality standards and

that the Tribe may initiate the

formulation and adoption of water

quality standards approvable under this

part" to read "is authorized to

administer the Water Quality Standards

program"

PART 142-NATIONAL PRIMARY

DRINKING WATER REGULATIONS

IMPLEMENTATION

1. The authority citation for part 142

continues to read as follows:

Authority: 42 U.S.C. 300g, 300g-1, 300g-2,

300g-3, 300g-4, 300g-5, 300g-6, 300j-4, and

300j-9.

§ 142.2 [Amended]

2. In § 142.2 the definition of "State

is amended by revising the phrase "or

an Indian Tribe treated as a State," to

read "or an eligible Indian tribe

§ 142.3 [Amended]

3. In § 142.3 paragraph (c) is amended

by revising the phrase "be designated by

the Administrator for treatment as a

State" to read "meet the statutory

criteria at 42 U.S.C. 300j-11(b)(1)"

Subpart H-Indian Tribes

4. The heading for subpart H of part

142 is revised to read as set forth above.

§ 142.72 Requirements for Tribal eligibility.

5. The heading of § 142.72 is revised

to read as set forth above.

6-7 Section 142.72 is amended by

revising the introductory text and

paragraph (d) to read as follows.

§ 142.72 Requirements for Tribal eligibility

The Administrator is authorized to

treat an Indian Tribe as eligible to apply

for primary enforcement responsibility

for the Public Water System Program if

it meets the following criteria:

(d) The Indian Tribe is reasonably

expected to be capable, in the

Administrator's judgment, of

administering (in a manner consistent

with the terms and purposes of the Act

and all applicable regulations) an

effective Public Water System program

§ 142.76 [Amended]

8. The heading of § 142.76 is amended

by revising the phrase "of treatment as

a State" to read "of eligibility"

9. Section 142.76 is amended by

revising in the introductory text the

phrase "qualifies for treatment as a State

pursuant to" to read "meets the criteria

of.

10. In § 142.76 paragraph (b)

introductory text is amended by revising

the word "shall" to read "should"

11. In § 142.76 paragraph (c) is

amended by revising the word "all" to

read "those" and by revising the phrase "support the Tribe s asserted

jurisdiction" to read "the Tribe believes

are relevant to its assertions regarding

jurisdiction"

12. In § 142.76 paragraph (d)

introductory text is amended by revising

the word "shall" to read "should"

13. In § 142.76 paragraph (d)(1) is

amended by revising the words

"including, but not limited to to read

"which may include"

14. In § 142.76 paragraph (e) is

amended by revising the phrase "a

Tribal request for treatment as a State

to read "a Tribe's eligibility"

15. In § 142.76 paragraph (f) is revised

to read as follows:

§ 142.76 Request by an Indian tribe for a

determination of eligibility.

(f) If the Administrator has previously

determined that a Tribe has met the

prerequisites that make it eligible to

assume a role similar to that of a state

as provided by statute under the Safe

Drinking Water Act, the Clean Water

Act, or the Clean Air Act, then that

Tribe need provide only that

information unique to the Public Water

System program (paragraph (c). (d)(5)

and (6) of this section).
Federal Register I Vol. 59, No. 239 / Wednesday, December 14, 1994 / Rules and Regulations 64345

§ 142.78 [Amendedl

16. The heading of § 142.78 is

amended by removing the phrase "for

treatment as a State"

17 In § 142.78 paragraph (a) is

amended by removing the words "for

treatment as a State submitted pursuant

to § 142.76"

18. In § 142.78 paragraphs (b), (ci and

(d) are removed and paragraph (e) is

redesignated as (b) and amended by

revising the language "If the

Administrator deterriines that a Tribe

meets the requirements of § 142.72, the

Indian Tribe is then eligible to apply

for" to read A tribe that meets the

requirements of § 142.72 is eligible to

apply for"

PART 144--UNDERGROUND

INJECTION CONTROL PROGRAM

1. The authority citation for part 144

continues to read as follows:

Authority: Safe Drinking Waler Act. 42

U.S.C. 300f et seq; Resource Conservation

and Recovery Act, 42 U.S.C. 6902 et seq.

2. Section 144.3 is amended by

adding the definition of "eligible Indian

tribe" in alphabetical order to read as

follows:

§ 144.3 Definitions.

Eligible Indian Tribe is a Tribe that

meets the statutory requirements

established at 42 U.S.C. 300j-11(bl(l).

PART 145-STATE UIC PROGRAM

REQUIREMENTS

1 The authority citation for part 145

continues to read as follows:

Authority: 42 U.S.C. 300f et seq.

§ 145.1 [Amendedj

2. In § 145.1 paragraph (h) is amended

by adding the word "eligible" between

"to" and "Indian Tribes" in the first

sentence; and by removing the second

sentence.

Subpart E-Indian Tribes

3. The heading of subpart E of part

145 is revised to read as set forth above.

§ 145.52 Requirements for Tribal eligibility.

4. The heading of § 145.52 is revised

to read as set forth above.

5-6. Section 145.52 is amended by

revising the introductory text and.

paragraph (d) to read as follows:

§ 145.52 Requirements for Tribal eligibility.

The Administrator is authorized to

treat an Indian Tribe as eligible to apply

for primary enforcement responsibility

for the Underground Injection Control

Program if it meets the following

criteria:

(d) The Indian Tribe is reasonably

expected to be capable, in the

Administrator's judgment, of

administering (in a manner consistent

with the terms and purposes of the Act

and all applicable regulations) an

effective Underground Injection Control

Program.

§ 145.56 (Amended]

7 The heading of § 145.56 is amended

by revising the phrase "of treatment as

a State" to read "of eligibility"

8. In § 145.56 the introductory text is

amended by revising the phrase "qualifies for treatment as a State

pursuant to" to read "meets the criteria

of."

9. In § 145.56 paragraph (b)

introductory text is amended by revising

the word "shall" to read "should"

10. In § 145.56 paragraph (c) is

amended by revising the word "all" to

read "those, and by revising the phrase "support -the Tribe's asserted

jurisdiction to read "the Tribe believes

are relevant to its assertions regarding

jurisdiction"

11. In § 145.56 paragraph (d)

introductory text is amended by revising

the word "shall" to read "should"

12. In..§ 145.56 paragraph (d)(1) is

amended by revising the words

"including, but not limited to" to read "which may include.

13. In § 145.56 paragraph Ce) is

amended by revising the phrase "a

Tribal request for treatment as a State"

to read "a Tribe's eligibility"

14. In § 145.56 paragraph (f] is revised

to read as follows:

§ 145.56 Request by an ladian Tribe for a

determination of eligibility.

(f) If the Administrator has previously

determined that a Tribe has met the

prerequisites that make it eligible to

assume a role similar to that of a State

as provided by statute under the Safe

Drinking Water Act, the Clean Water

Act, or the Clean Air Actthen that

Tribe need provide on 7 ,hat

information unique to the Underground

Injection Control program (§ 145.76(c)

and (d)(6)).

§ 145.58 [Amended]

15. The heading of § 145.58 is

amended by removing the phrase "for

treatment as a State"

16. In § 145.58 paragraph (a) is

amended by removing the phrase "for

treatment as a State submitted pursuant

to § 145.56"

17 In § 145.58 paragraphs (b), (c), and

(d) are removed and paragraph (e) is

redesignated as paragraph (b) and

amended by revising the language "If

the Administrator determines that a

Tribe meets the requirements of

§ 145.52, the Indian Tribe is then

eligible to apply for" to read A tribe

that meets the requirements of § 145.52

is eligible to apply for"

PART 233-404 STATE PROGRAM

REGULATIONS

1. The authority citation for part 233

continues to read as follows:

Authority: 33 U.S C. 1251 et seq.

Subpart G-Eligible Indian Tribes

2. The heading of suibart G of part

233 is revised to read as set forth above.

§ 233.60 Requirements for eligibility.

3. The heading of § 233.60 is revised

to read as set forth above.

4. Section 233.60 introductory text is

amended by removing the words "a

State for purposes of making the Tribe"

§233.61 Determination of Tribal eligibility.

5. The heading of § 233.61 is revised

to read as set forth above.

6. In § 233.61 the introductory text is

amended by revising the phrase "that it

qualifies for treatment as a State

pursuant to Section 518 of the Act" to

read "that it meets the statutory criteria

which authorize EPA to treat the Tribe

in a manner similar to that in which it

treats a State" by revising the'word "shall" in the last sentence to read

"should."

7 In § 233.61 paragraph (b)

introductory text is amended by revising

the word "shall" to read "should"

8. In § 233.61 paragraph (c](2) is

amended by adding at the end of the

paragraph before the semicolon "wich

may include a copy of documents such

as Tribal constitutions, by-laws,

charters, executive orders, codes,

ordinances, and/or resolutions which

support the Tribe's assertion of

authority"

9. Section 233.61 (c)(3) is removed.

10. In § 233.61 paragraph (d)

introductory text is amended by revising

the word "shall" to read "may"

11. In § 233.61 paragraph (d)(1) is

amended by revising the words

"including, but not limited to" to read "which may include"

12. In § 233.61 paragraph (e) is

amended by revising the words "request

for treatment as a State" to read

"application"

13. In § 233.61 paragraph (f) is

amended by adding the words "for

eligibility or" between "has met the
64346 Federal Register / Vol. 59, No. 239 / Wednesday December 14,

requirements" and "for 'treatment as a

State.

§ 233.62 (Amended]

14. The heading of § 233.62 is

amended by removing the phrase "for

treatment as a State

15. In § 233.62 paragraph (a) is

amended by removing the phrase "for

treatment as a State"

16. In § 233.62 paragraphs (b), (c), (d),

and (e) are removed.

17 In § 233.62 paragraph (f) is

redesignated as paragraph (b).

PART 501-STATE SLUDGE

MANAGEMENT PROGRAM

REGULATIONS

1. The authority citation for part 501

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

"§501.11 [Amended]

2. In § 501.11 (a)(1) remove the phrase "eligible for treatment as a state" and

revise the text "§ 501.24(e)" to read

"§ 501.24(b)"

3. In § 501.11(b)(2) remove the phrase

"for treatment as a State" both times it

appears and revise the text "§ 501.24(e)"

to read "§ 501.24(b)"

§501.12 [Amended]

4. In § 501.12(g) remove the phrase

"for treatment as a State" and revise the

text "§ 501.24(e)" to read "§ 501.24(b)"

§501.22 [Amended]

5. The heading of § 501.22 is amended

by revising the phrase "for treatment of

Indian Tribes as States" to read "for

eligibility of Indian Tribes."

6. In § 501.22 paragraph (a)

introductory text is amended by

removing the phrase "a State for

purposes of making the Tribe."

7 In § 501.22 paragraph (a)(4).is

amended by removing the last two

sentences.

§501.23 [Amended]

8. The heading of § 501.23 is amended

by removing the phrase "for treatment

as a State"

9. In § 501.23 the introductory text is

amended by removing the phrase "for

treatment as a State.

10. In § 501.23 paragraph.(b)

introductory text is amended by revising

the word "shall" to read "should."

11. In § 501.23 paragraph (c) is

amended by revising the phrase. "a copy

of all documents" to read "copies of

those documents" and by revising the

phrase "support the Tribe s assertion"

to read "the Tribe believes are relevant

to its assertion.

12. In § 501.23 paragraph (d)

introductory text is amended by revising

the word "shall" to read "should."

13. In § 501.23 paragraph (d)(1) is

amended by revising the words

"including, but not limited to" to read

"which may include.

14. In § 501.23 paragraph (e) is

amended.by revising the phrase "a

Tribal request for treatment as a State"

to read "a Tribe's eligibility

15. In § 501.23 paragraph (f) is revised

to read as follows:

§ 501.23 Request by an Indian Tribe for a

determination of eligibility.

(f) If the Administrator or her

delegatee has previously determined

that a Tribe has met the prerequisites

that make it eligible to assume a role

similar to that of a state as provided by

statute under the Safe Drinking Water

Act, the Clean Water Act, or the Clean

Air Act, then that Tribe need provide

only that information unique to the

sludge management program which is

requested by the Regional

Administrator.

§ 501.24 [Amended]

16. The heading of § 501.24 is

amended by removing the phrase "for

treatment as a State.

17 In § 501.24 paragraph (a) is

amended by removing the words "for

treatment as a State."

18. In § 501.24 paragraphs (b), (c), (d),

and (e) are removed and paragraph (f) is

redesignated as paragraph (b).

[FR Doc. 94-30401 Filed 12-13-94: 8:45 arnl

BILLING CODE 8560-60-P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 611, 675, and 676

[Docket No. 941241-4341; I.D. 112394B]

Foreign Fishing; Groundfish Fishery of

the Bering Sea and Aleutian Islands;

Limited Access Management of

Federal Fisheries In and Off of Alaska

AGENCY' National Marine Fisheries

Service (NMFSNational Oceanic and

Atmosphenc Ainistration (NOAA).

Commerce.

ACTION: Interim 1995 specifications of

groundfish, associated management

measures, and closures.

SUMMARY- NMFS issues interim 1995

initial total allowable catches (ITACs)

for each category of groundfish and

specifications for prohibited species

bycatch allowances for the groundfish

fishery of the Bering Sea and Aleutian

Islands management area (BSAI). NMFS

is also closing specified fisheries

consistent with the interim 1995

groundfish specifications. The intended

effect is to conserve and manage the

groundfish resources in the BSAI.

EFFECTIVE DATE: January 1, 1995, until

the effective date of the final 1995 initial

specifications.

ADDRESSES: The preliminary 1995 Stock

Assessment and Fishery Evaluation

(SAFE) Report may be requested from

the North Pacific Fishery Management

Council, P.O. Box 103136, Anchorage,

AK 99510, 907-271-2809

FOR FURTHER INFORMATION CONTACT'

Ellen R. Varosi, NMFS, 907-586-7228

SUPPLEMENTARY INFORMATIeN:

Groundfish fisheries in the BSAI are

governed by Federal regulations (50 CFR

611.93 and parts 675 and 676) that

implement the Fishery Management

Plan for the Groundfish Fishery of the

Bering Sea and Aleutian Islands Area

(FMP). The FIMP was prepared by the

North Pacific Fishery Management

Council (Council) and approved by

NMFS under the Magnuson Fishery

Conservation and Management Act.

The FMP and implementing

regulations require NMFS, after

consultation with the Council, to

specify for each calendar year the total

allowable catch (TAC) for each target

species and the "other species" category

(§ 675.20(a)(2)). Regulations under

§ 675.20(a)(7)(i) further require NMFS to

publish and solicit public comment on

amounts of proposed annual TACs and

ITACs for each target species,

apportionments of each TAC, prohibited

species catch (PSC) allowances under

§ 675.21(b), and seasonal allowances of

pollock TAC. The Council, at its

September 1994 meeting, based on the

recommendations of its Scientific and

Statistical Committee (SSC) and other

information, approved preliminary

initial specifications for 1995, as

detailed below NMFS is publishing

these specifications in today's proposed

rule section of the Federal Register

Preliminary TAC Specifications

The Council developed its TAC

recommendations (Table 1) based on the

preliminary acceptable biological

catches (ABCs) as adjusted for other

biological and socioeconomic

considerations, including maintaining

the total TAC in the required optimum

yield range of 1.4-2.0 million metric

tons (mt). Each of the Council's

recommended TACs for 1995 is equal to

or less than the final 1995 ABC for each

species category Therefore, NMFS finds

that the recommended TACs are

consistent with the biological condition

of groundfish stocks. The preliminary.

1994 / Rules and Regulations